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By paragraph 2 defendant pleaded that at, factory, or place of business in the state of the time the contract was made plaintiff, by Kentucky; and that the orders for the two its authorized agent, entered into a collateral blowers purchased by defendant were obagreement, by which plaintiff contracted to tained by its traveling salesman, and were send a competent person to make the neces- approved by plaintiff at its office in Missouri. sary connections for the machinery, and the It further pleads that section 571 of the plaintiff failed to send a man for that pur- Kentucky Statutes has no application to the pose, although defendant notified plaintiff business done by plaintiff, but that, if it does, that it was ready to make the connections it is in violation of the commerce clause of and that a man be sent.

the federal Constitution. Defendant's deBy paragraph 3 defendant pleaded that murrer to the reply was overruled, and, havplaintiff was a corporation organized under ing declined to plead further, judgment was the laws of the state of Missouri, and was rendered in favor of plaintiff. not a foreign insurance company, and was [1] The first question presented is the engaged in doing business in this state, and propriety of the trial court's action in susat the time of the execution of the contract taining the demurrer to the first paragraph sued on it had not complied with section 571 of defendant's answer. This is not a case of the Kentucky Statutes, requiring every where the article sold was, without qualificorporation but foreign insurance companies cation, to be satisfactory to the purchaser. carrying on business in this state to file in It is unnecessary, therefore, to determine the office of the secretary of state a state whether the case is one where the purchaser ment signed by its president or secretary, must act reasonably. To determine the quesgiving the location of its offices in the state tion of satisfaction, the contract plainly proof Kentucky and the name or names of its vides for a trial by the purchaser. The case agents thereat upon whom process might be is one where the purchaser must act in good served, and making it unlawful for such cor- faith. He should make the test required by poration to do business in this state until the contract, and, after fairly and candidly such statement has been filed, and that the investigating and considering the matter, contract sued on was null and void.

reach a genuine conclusion. To permit the Plaintiff's demurrer to the first and second purchaser to rely on tests made by others paragraphs of the answer was sustained, but similarly situated would not only do violence overruled as to the third paragraph. Subse to the terms of the contract, but would in

. quently defendant filed an amended and sup-ject into the case elements of confusion and plemental answer, pleading, in substance, uncertainty which the parties did not conthat since the filing of its original answer template. Dissatisfaction with the blower defendant had offered to have the connec- system by others might be due to caprice, tions made, provided plaintiff would send or to improper installation or operation, and a competent man to help defendant make all these questions would have to be taken such connections, and, if such agent should into consideration in determining whether succeed in making the connection, defendant or not another purchaser was justified in would keep the system and pay the purchase refusing to pay for the articles because he price therefor and waive the defenses made had found them unsatisfactory. As before in its answer. The plaintiff agreed to have stated, the satisfaction or dissatisfaction rea competent man come to Louisville to make ferred to in the contract is that based on an the connection, and, relying upon this pro-actual trial made by the purchaser. As he mise, defendant expended $48, but plaintiff must comply with his contract, and therefore failed to comply with its agreement. The act honestly in the matter of making the test pleading concludes with a prayer to the ef- himself, he cannot rely on the dissatisfaction fect that the petition be dismissed, and that of others similarly situated to escape the defendant recover on its counterclaim the obligation which he voluntarily incurred. sum of $48. To the amended and supplement- Water Heater Co. v. Mansfield, 48 Vt. 378; al answer plaintiff interposed a demurrer, Hollingsworth v. Colthurst, 78 Kan. 455, 96 which was sustained. To the third para- Pac. 851, 130 Am. St. Rep. 382, 18 L. R. A. graph of defendant's original answer plain- (N. S.) 741; Thaler v. Greisser Const. Co., tiff filed a reply, denying the plaintiff carried 229 Pa. 512, 79 Atl. 149, 33 L. R. A. (N. S.) on business in the state of Kentucky, and 345; 6 R. C. L. S 333, p. 952. Nor does the pleading affirmatively that plaintiff was a fact that the test would have involved exMissouri corporation engaged in interstate pense affect the case, since that is an element commerce; that its method of doing business which should have been considered before was through traveling agents sent into the the contract was entered into. Having restate of Kentucky and other states to solicit ceived the machinery, and having failed to orders for the blowers system on a commis- make the trial required by the contract withsion basis; that these orders were submit in the time specified therein, defendant is ted to plaintiff for its approval in St. Louis, liable for the purchase price, unless the and, when accepted by plaintiff, the orders other defenses interposed are sufficient to were filled by shipping the blowers to the defeat a recovery. Kenney Co. v. Anderson, v. Russell Co., 148 Ky. 490, 146 S. W. 1103. tions are not criminally liable under that sec

[2] The court did not err in sustaining a tion for engaging in interstate transactions demurrer to the second paragraph of defend- without complying with its provision. Comant's answer, for the reason that there was monwealth v. Hogan, 74 S. W. 737, 25 Ky. no allegation that the collateral parol agree- Law Rep. 41; Ryman Steamboat Line v. ment relied on, which varied the terms of Commonwealth, 125 Ky. 253, 101 S. W. 403, the written contract, was omitted, therefrom 10 L. R. A. (N. S.) 1187, 30 Ky. Law Rep. by fraud or mistake. Castleman-Blakemore 1276; Commonwealth v. Eclipse Hay Press Co. v. Pickrell & Craig Co., 163 Ky. 750, 174 Co., 104 S. W. 224, 31 Ky. Law Rep. 824; S. W. 749.

Commonwealth v. Baldwin, 96 S. W. 914, 29 [3] The next question presented is the pro- Ky. Law Rep. 1074; Three States Buggy Co. priety of the court's action in sustaining a v. Commonwealth, 105 S. W. 971, 32 Ky. Law demurrer to the amended and supplemental Rep. 385. The ruling of the United States answer. This pleading sets up a defense Supreme Court is to the same effect. In which it is alleged occurred after the filing the recent case of Sioux Remedy Co. v. Cope, of the original answer. The basis of the de- 235 U. S. 197, 35 Sup. Ct. 57, 59 L. Ed. 193, fense is the offer of the defendant to install the United States Supreme Court held the the machinery if plaintiff would send a com- requirement that a foreign corporation appetent man to assist in the work, the agree-point a resident agent on whom process may ment of the defendant to withdraw its de- be served in the action against it, as a condifenses, and the agreement on the part of tion precedent to suing in the courts of the plaintiff to send a competent man, which it state to collect a claim arising out of infailed to do. We find however, that though terstate commerce transactions, is an unconthe two promises are set out in the pleading, stitutional burden on interstate commerce. the pleader is very careful to avoid alleging In discussing the question, the court said: that the plaintiff's promise was made in

"The second one, respecting the appointment consideration of the defendant's agreement served, is particularly burdensome, because,

of a resident agent upon whom process may be to withdraw its defenses; in other words, as the Supreme Court of the state has said, it the pleading fails to allege any consideration requires the corporation to subject itself to whatever for the promise. As plaintiff's

the jurisdiction of the courts of the state in

general as a prerequisite to suing in any of rights under its contract had accrued at the them; that is to say, it withholds the right to time of the filing of the amended and supple- sue even in a single instance until the corporamental answer, and plaintiff was therefore tion renders itself amenable to suit in all the entitled to recover, the promise made by it there. If one state can impose such a con

courts of the state by whosoever chooses to sue plaintiff to send a man to install the machin- dition, others can, and in that way corporations ery was without consideration, and could engaged in interstate commerce can be subjected not be enforced. It follows that the demur- to great embarrassment and serious hazards in

the enforcement of contractual rights directly rer to the amended and supplemental answer arising out of and connected with such comwas properly sustained.

merce. As applied to such rights, we think the [4, 5] The last question presented is wheth-conditions are unreasonable and burdensome,

and therefore in conflict with the commerce er or not the failure of plaintiff to comply clause." with section 571 of the Kentucky Statutes

Inasmuch as we have held that noncomprevents a recovery. That the plaintiff is en- pliance with section 571 prevents a corporagaged in, and that the transaction out of tion from recovering on a contract made in which this action grows is one of, interstate carrying on its business in this state (Oliver commerce, there can be no doubt. The re- v. Louisville Realty Co., 156 Ky. 628, 161 ply shows that the plaintiff is a Missouri s. W. 570, 51 L. R. A. [N. S.] 293, Ann. Cas. corporation. It sells its blowers in the va- 1915C, 565), the effect of our construction rious states by means of traveling agents, of the statute is equally as burdensome on who receive a commission on the sales made. interstate commerce as the construction givThe agent takes the order, the order is trans- en by the Supreme Court of Dakota to the mitted to the company for its approval and, statute of that state referred to in the above when approved, the machinery is shipped to opinion. It follows that section 571 of the the purchaser. The mere fact that the agent Kentucky Statutes is inoperative as to ininspects and measures the building and the terstate commerce transactions, and thereplace where the machinery is to be installed fore does not prevent a recovery by plainin no wise affects the character of the trans- tiff. action. We have held that section 571 is void In view of the questions presented, the apas to foreign corporations engaged strictly in peal is granted, and an opinion written. interstate commerce, and that such corpora- Judgment affirmed.

200 feet, but appellant's lot, which was a corVOGT v. CITY OF OAKDALE.

ner, fronted 50 feet on Grand boulevard, and (Court of Appeals of Kentucky. Nov. 18, 1915.) extended back 200 feet on Kenton street. It 1. MUNICIPAL CORPORATIONS Ouw 407-PUB- will thus be seen that upon the front-foot LIC IMPROVEMENTS-ASSESSMENTS—“Tax." basis she will have to pay four times as much

A local assessment on property specially for the street improvement on Kenton street benefited by a local improvement for the cost thereof is but a charge for the improvement, and as the other lot owners on that street, excludis not a tax within Const. 88 157, 171, limiting ing the corners, although the square foot area the tax rate and requiring uniformity of taxes of her lot is no greater. She complains: (1) on all property within the same territorial limit. That the statute which provides for street

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. gg 1003, 1004; Dec. construction on the front-foot basis is in Dig. 407.

violation of the fourteenth amendment to For other definitions, see Words and Phrases, the United States Constitution, because it First and Second Series, Tax.]

amounts to taking of property without due 2. CONSTITUTIONAL LAW C290_MUNICIPAL process of law, and because it is a tax as

CORPORATIONS Cw407 – DUE PROCESS OF sessment upon her property made without LAW-LOCAL ASSESSMENTS.

Ky. St. § 3643, provides that the cost of considering equality of burden as between any street improvement shall be assessed equally the owners of similar property; (2) that it on the front feet of the abutting property not to is in violation of section 171 of the Kentucky exceed 50 per cent. of the value of the ground Constitution, requiring uniformity of taxes after making of the improvement, excluding the value of buildings and other improvements. upon all property within the same territorial Plaintiff owned a corner lot fronting 200 feet limit; (3) that it is in violation of section on the street improved and 50 feet on another 157 of the Kentucky Constitution, because street. The other lots on the street improved had a frontage of 50 feet and a depth of 200 city taxation is increased beyond the limit feet. Held, that though plaintiff's lot had a therein authorized. Upon these grounds she depth of only 50 feet on the street improved, instituted an action in equity to enjoin the a frontage assessment was not a taking of prop- city and its officers from constructing Kenton erty without due process of law.

[Ed. Note.-For other cases, see Constitution- street at the expense of the abutting property al Law, Cent. Dig. 88 871–875; Dec. Dig. Om owners, and from issuing or selling bonds to

, 290; Municipal Corporations, Cent. Dig. 88 pay therefor.

. $$

The lower court sustained 1003, 1004; Dec. Dig. Ow407.]

demurrer to her petition, and she appeals. Appeal from Circuit Court, Jefferson Coun- In our opinion the facts alleged do not entitle ty, Chancery Branch, Second Division. her to the relief prayed for, nor do they

Action by Ella Vogt against the City of raise any of the questions above set forth. Oakdale. From a judgment sustaining a de-No averment is made as to the value of her, murrer to the petition, plaintiff appeals. Af- or other, property on Kenton street. There firmed.

is no claim of spoliation; no claim of an exW. S. Sanford, of Louisville, for appellant. pense in excess of the benefits to be received ; Chapeze & Crawford, of Louisville, for ap- no claim for an expense in excess of 50 per pellee.

cent. of the value of her property. She mere

ly alleges, in the form of conclusions, that NUNN, J. Oakdale is a city of the fifth her propertyclass. By an ordinance duly adopted it pro- "is no more valuable per square foot than vided for the construction of a carriageway many other pieces of property abutting thereon, 30 feet wide on Kenton street, and, after ad- and that this plaintiff's apportionment for said 30 feet wide on Kenton street, and, after ad- improvement will be many times greater, in provertising for bids, let the contract therefor portion to the value of her property, than many according to the plans and specifications. Other owners of property abutting upon said imThe ordinance was passed and the street im- provement.”

"It is a fundamental doctrine of American provement attempted under the act of 1912, jurisprudence that those receiving special benewhich is now section 3643 of the Kentucky fits from the public should make compensation Statutes. Under authority of the statute for them * * * and the levy upon property the ordinance provided that:

specially benefited of a cost of a local improve

ment is but a further application of this same “Said work shall be done at the cost of the doctrine. * An assessment for a public owners of the ground fronting and abutting up improvement is not a tax in the ordinary sense on said street according to the number of front of the term, but a charge for improvements for feet owned by each of them respectively. the making of which for his benefit the proper* * * That the portion of said work charg- ty owner should pay compensation.” 28 Cyc. ed to and assessed against the property owners 1102. shall be paid for on the ten year bond plan as provided for in the act of the General Assem

In Gosnell v. City of Louisville, 104 Ky. bly 1912."

201, 46 S. W. 722, 20 Ky. Law Rep. 519, the Under the statute the charge against an court said: abutting property owner

“The distinction between a tax and a local "shall not exceed fifty per centum of the value assessment has been uniformly recognized by of the ground after such improvement is made, the courts of this state; and, while the latter is, excluding the value of the buildings and other in one sense, a tax, being the imposition of a improvements upon the property so improved." burden upon the citizen and an involuntary

[1] Except at the corners, the lots on Ken charge upon his property, it is not a tax in the

[1] Except at the corners, the lots on Ken- sense contemplated by the framers of the Conton street fronted 50 feet and extended back stitution." Holzhauer v. City of Newport, 94

*

Ky. 407, 22 S. W. 752, 15 Ky. Law Rep. 188;, der of parties, he must set out the facts relied
Maddux v. City of Newport, 14 S. W. 957, 12 on to show the fraud.
Ky. Law Rep. 657; Levi v. City of Louisville,

[Ed. Note.-For other cases, see Removal of 97 Ky. 409, 30 S. W. 973, 16 Ky. Law Rep. Causes, Cent, Dig. $$ 132, 166-179; Dec. Dig. 872, 28 L. R. A. 480; McNaughten v. Industrial

Om 86.) School, 44 S. W. 380, 19 Ky. Law Rep. 1695; Zable v. Orphans' Home, 92 Ky. 89, 17 S. W. 2. REMOVAL OF CAUSES Omm 36-DIVERSITY OF 212, 13 Ky. Law Rep. 385, 13 L. R. A. 668. CITIZENSHIP-FRAUDULENT JOINDER OF PAR

TIES. [2] It thus appears that there is no merit

Where the petition on its face states a good in appellant's contention that the statute and cause of action against both defendants named, ordinance are in violation of sections 157 and the nonresident defendant cannot have the cause 171 of the Kentucky Constitution. Neither removed to the federal court on the ground of diare they violative of the fourteenth amend-versity of citizenship, in the absence of a posi

tive showing of fraud in joining them in order to ment of the United States Constitution. It avoid the removal. does not appear that any property has been, [Ed. Note. For other cases, see Removal of or is about to be, taken without due process Causes, Cent. Dig. $ 79; Dec. Dig. Om 36.] of law, nor that a tax assessment is about to

3. REMOVAL OF CAUSES Om 17-DIVERSITY OF be made which imposes upon her an unequal CITIZENSHIP-FRAUDULENT JOINDER OF PABburden. The fact that the property bears TIES. the expense of improvement according to

A petition, alleging that a defendant's servfrontage rather than superficial area does ant, as representative of the defendant employ

er, was the mine boss, superior in authority to not render it unconstitutional, nor of itself the deceased, and directly charged with the duty make the burden of taxation unequal. Ei- of looking after the safety of the mine; that he ther plan may inflict some hardships, but it directed the deceased to do the work he was dois within the power of the Legislature to cre- dent in which deceased was killed was caused by

ing at the time he was killed ; that the acciate a taxing district for improvements upon the unsafe and dangerous condition of the mine either plan. Louisville, etc., v. Barber As-roof; and that this condition was known to the phalt Paving Co., 197 U. S. 430, 25 Sup. Ct. defendant servant and the defendant employer,

or could have been known to them by the exer466, 49 L. Ed. 819; Shumate v. Heman, 181 cise of ordinary care-states a good cause of acU. S. 402, 25 Sup. Ct. 645, 45 L. Ed. 916, 922; tion against both defendants, so that neither is French v. Barber Asphalt Paving Co., 181 U. entitled to a transfer to the federal court on the

ground of diversity of citizenship, to avoid which S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879.

the plaintiff made the alleged fraudulent joinder The French Case, supra, distinguishes the of parties. case of Norwood v. Baker, 172 U. S. 269, 19

[Ed. Note.-For other cases, see Removal of Sup. Ct. 187, 43 L. Ed. 443, upon which ap- Causes, Cent. Dig. $ 92; Dec. Dig. Om 47.) pellant relies. The Norwood Case has no

4. DEATH m 43NEGLIGENCE-PERSONS LIAapplication here. It was a proceeding to con

BLE. demn a right of way for a street through Under Const. § 241, providing that, whenBaker's property at the expense of the prop- ever the death of a person results from injury erty which he owned on each side of the pro- may be recovered from the corporation, or per

inflicted by negligence or wrongful act, damages posed street. This was equivalent to taking, son so causing the same, and Ky. St. $ 6, providunder the guise of taxation, private property ing that damages may be recovered from the for public use without compensation. Of

wrongdoer and its agents or servants causing

the same, an action may be brought against both course, on the front-foot plan the cost appor- the employer and his servants whose negligence tioned to appellant's property will be more caused the death of deceased. than that apportioned to the other owners on [Ed. Note.-For other cases, see Death, Cent. Kenton, because her lot has a greater front- Dig. § 59; Dec. Dig. Onw 43.] age on that street. If later on Grand boule- 5. REMOVAL OF CAUSES 39–GROUNDS-DIvard is improved, she will have to bear a pro- VERSITY OF CITIZENSHIP-ERRONEOUSLY DIportionate share of that expense also. But RECTED VERDICT FOR RESIDENT DEFENDANT. this extra expense is due to the fact that she ployer and the employer's mine boss are joined

In an action in which the deceased's emowns a corner lot. It does not follow, how- as defendants, where the court erroneously diever, that the burden of taxation is unequal. rected a verdict for the defendant boss, the case As a rule, corner lots are more valuable, and will be treated as though the ruling were not

made, and the defendant company cannot secure there is nothing in the petition to indicate a removal to the federal court because the resithat her case is an exception to the rule. dent mine boss is no longer in the case, and there

The judgment of the lower court is af- is therefore diversity of citizenship between the firmed.

plaintiff and the remaining defendant.

[Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. 8 73; Dec. Dig. Om39.]

6. REMOVAL OF CAUSES O39-DIVERSITY OF CARTER COAL CO. v. PRICHARD'S

CITIZENSHIP DIRECTED VERDICT FOR RESIADM’R.

DENT DEFENDANT. (Court of Appeals of Kentucky. Nov. 18, 1915.) In an action in which the deceased's em

ployer and the employer's mine boss are joined 1. REMOVAL OF CAUSES Om 86 PETITION as defendants, although a ruling of the court di

SUFFICIENCY FRAUD IN JOINDER OF PAR- recting a verdict for. the resident defendant was TIES.

correct, the case must be treated as though he Where the defendant moves to remove a were still a party, since the plaintiff on appeal cause to the federal court, on the ground of di- having preserved his exception may appeal from versity of citizenship, alleging fraud in the join-) the directed verdict, and thus the party in whose

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favor the verdict is directed is never out of the the court determined that the plaintiff had case until the appeal is decided.

failed to make out a case against Donahue [Ed. Note. For other cases, see Removal of and directed a verdict in his behalf. Causes, Cent. Dig. $ 73; Dec. Dig. Om39.]

The plaintiff's petition charged that the 7. MASTER AND SERVANT Ow289_INJURIES TO Carter Coal Company was the owner and op

SERVANT-CARE REQUIRED-QUESTIONS FOR
JURY.

erator of the mine in which Prichard came The question whether the deceased employé to his death, and: in a mine, killed by fall of stone from the roof,

That the defendant Donahue "was a servant exercised ordinary care for his own safety, held and employé of the defendant company, working on the evidence for the jury.

for it in the operation of its mine, acting in the [Ed. Note.-For other cases, see Master and capacity of a foreman or boss, and directing othServant, Cent. Dig. 88 1089, 1090, 1092–1132; er servants of said company, including the said Dec. Dig. On 289.]

James E. Prichard, in the performance of their 8. MASTER AND SERVANT 118, 124 – INJU- duties at work in said mine while at work for

@ RIES TO SERVANT-CARE REQUIRED OF MAS said company.

That he was put to TER-INSPECTION OF MINE ROOF.

work by the defendant company and by the mine It is the duty of the master operating a coal foreman, Mike Donahue, to replace a car on the mine not only to inspect the roof of the mine in track, which was wrecked and off the rails of the exercise of ordinary care to provide a safe the track in its mine, and while so engaged a place for his servants to work, but also to sup- large quantity of slate, stone, and earth fell upon port the roof in a proper manner.

him and so bruised and mangled him that he immediately died.

That the decedent was [Ed. Note. - For other cases, see Master and ignorant and inexperienced in mining and did Servant, Cent. Dig. $S 177, 202, 209, 235–242; not know of the dangers and hazards attending Dec. Dig. Omw118, 124.]

the work at which he was employed at the time 9. MASTER AND SERVANT 124-INJURIES TO of his injury, and the defendant Donahue knew SERVANT-CARE REQUIRED.

that the said Prichard was ignorant and inexWhere the duty of inspecting the mine is perienced and did not know of the dangers and upon the master, he cannot escape liability for hazards attendant upon the duties required of injuries to the servant unless the duty of inspec- him as aforesaid. Nor did the defendant comtion was imposed upon the injured person, or the pany or Donahue inform him of the dangerous danger was so obvious that a person of ordinary character of the work at which he was placed, intelligence in the exercise of ordinary care or warn or caution him of the dangers attendant could have discovered the peril; nor can he es- thereto._He said that the place where the said cape liability by a showing of inspection of the James E. Prichard was placed to work and mine, since this is not a conclusive showing of where he received the injuries aforesaid was in exercise of the required degree of care, but the a highly dangerous and unsafe place for the duquestion is still for the jury.

ties required of him, and was known by the de[Ed. Note. For other cases, see Master and fendant company and the mine foreman and Servant, Cent.

Dig. SS 235-242; Dec. Dig. Ene boss, Donahue, to be highly dangerous and un

$8 Om 124.]

safe; but its unsafe condition was not known to

him. He says that it was the duty of the Appeal from Circuit Court, Knox County. defendant company and the defendant Donahue

Action by James E. Prichard's administra- to inspect and make reasonably safe the working tor against the Carter Coal Company. From place of the said Prichard, which they failed a judgment for plaintiff, defendant appeals. Prichard to make safe his said working place.

to do, and that it was not the duty of the said Affirmed.

The plaintiff says that the injuries to the said

Prichard were brought about and caused alone P. D. Black and Black, Black & Owens, by reason of the joint and concurrent gross negall of Barbourville, for appellant. J. D. Tug- ligence of the defendant company, and the degle, of Barbourville, for appellee.

fendant Donahue, in failing to inform or instruct said Prichard in the duties required of

him and of the dangerous character of the work. CARROLL, J. This suit was brought by at which he was placed, and warn or caution the administrator of James E. Prichard him of

Prichard him of the danger and hazard attendant upon against the Carter Coal Company, a Dela- the work required of him.” ware corporation, and Mike Donahue, its In seasonable time after the defendants mine boss who was a citizen of Kentucky, to had been brought before the court by service recover damages for the death of James E. of process, and before the Carter Coal ComPrichard while in the employment of the pany had otherwise entered its appearance to company and working under the direction the action, it moved the trial court to transand control of the defendant Donahue. At fer the action to the federal court, upon the the time of his death, Prichard was a track ground that it was a citizen of the state of man, engaged in placing a derailed car on the Delaware, and averred that: track, and while so engaged Prichard and “The plaintiff, C. P. Prichard, has made the two other men were killed by a large and defendant Mike Donahue a party defendant heavy piece of slate that fell from the roof herein with this petitioner for the sole purpose

of undertaking to deprive this petitioner of the of the mine. On the trial of the case, there right to remove the said action to the United was a directed verdict as to Donahue and States District Court for the Eastern District of a judgment against the coal company.

Kentucky for trial, and to fix the only jurisdicOn this appeal of the coal company, one all of same is done willfully and wrongfully, and

tion for said trial in the Knox circuit court, and assignment of error relates to the refusal of with fraudulent intent, while said plaintiff and the trial court to remove the action to the his attorney know that said Mike Donahue is federal court when the removal petition was concurred in any negligence, if any there was,

not liable in any way to plaintiff, and in no way first filed and also upon a renewal of the mo- which brought about the death of the decedent, tion, at the conclusion of the evidence, when | Jas. E. Prichard, and that said Mike Donahue is

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